August 2011

TDSAT JUDGEMENTS

This Monthly Column will Review Of Some Of The Major Cases Concerning Cable Networks, MSOs And Broadcasters, Filed At The Disputes Redressal Forum, TDSAT, In Delhi. SCaT Magazine Takes A Look At Selected Cases And Their Outcomes

IMPORTANT TDSAT ORDER FOR HOTELS & COMMERCIAL ESTABLISHMENTS

By Sohrab Mistry

Hotel Airline International v/s TRAI and Gaylord Restaurant & Ors. v/s TRAI 111(C )/2011 & 176(C )/ 2011 & 136(C ) / 2011 dated 7.7.2011 In this appeal filed by Hoteliers and Restaurateurs, the issue of tariff applicable to commercial establishments came up.

Commercial tariff i.e. the supply of Cable TV signals to commercial customers such as hotels, has been much disputed and had in fact gone upto the Supreme Court in 2006 and 2007.

1. In an earlier order of remand the TDSAT had held in Petition No.80 (C) /2005 dated 10.9.2007 that "members of Petitioner Association will be free to have arrangements for supply of signals with cable operators whom they choose for which purpose they will be free to enter into fresh arrangements as they may be advised".

This remand order has been challenged in the Supreme Court but no stay issued. In the meanwhile, broadcasters raised fresh dispute with restaurant and hotels stating that no cable operator / DTH / IPTV service provider nor any person running a commercial establishment is authorized to receive and transmit signals through any means without obtaining a license from the broadcaster. The commercial establishments were asked to contact the distributor of the broadcaster M/s. Novex for obtaining license. The broadcasters also issued Public Notice to this effect. Fresh petitions came to be filed which have now been decided.


NON PROTECTED CATEGORY OF COMMERCIAL CUSTOMERS
  • Hotels with rating of 3 star and above
  • Heritage hotels (as described in the guidelines for classification of hotels issued by Department of Tourism, Government of India)
  • Any other hotel, motel, inn, and such other commercial establishment, providing board and lodging and having 50 or more rooms."

The Tribunal heard rival contentions in great detail and also framed issues and took on record evidence filed and examined witnesses. It also examined the status of commercial tariff in the tariff orders from 1.10.2004 which sought to make a distinction between ordinary cable subscriber and commercial cable subscriber.

2. The Court also rejected the broadcaster contention that the TDSAT did not have the jurisdiction to decide the issue of commercial tariff and for this purpose relied on TDSAT judgment in the case of Sea TV Network v/s Star India Private Limited (2005) and Supreme Court judgment in the case of Union of India v/s Tata Teleservices (Maharashtra Limited - 2007).


Members Of FHRAI Can Make Arrangements With Any Cable Operators For Supply Of Signals

3. The Tribunal held that the conduct of broadcasters in making attempt to extract additional amounts from Petitioners must be deprecated and added that no additional amount could be charged from protected category of commercial consumers.

4. It further held that tariff orders or TRAI regulations do not provide for any license which is only contemplated under Copyright Act, 1952.


Need Not Obtain Any Separate License From Broadcasters.

5. The Tribunal noted that criminal actions were initiated against Petitioners but not MSOs / LCOs who had actually supplied the signals. The Tribunal felt that if some MSOs are authorized to supply signals to commercial cable viewers, it is difficult to understand why Respondent broadcasters had not placed names of authorized MSOs in public domain.

6. Further, it held that M/s. Novex claiming to represent broadcasters is not an authorized distributor within the meaning of tariff orders.

As far as Broadcasters are concerned, they can only act in accordance with law against MSOs, LCOs not having rights of commercial broadcast. If Petitioners belong to protected group they cannot be proceeded against.


Broadcasters Are Not Allowed To Be Represented By Any Third Party viz. M/s. Novex.


7. Further, the Hotels need not obtain any separate license from broadcasters.

CONCLUSION

This judgment clearly protects smaller hotels & restaurants from filing of criminal and piracy cases by broadcasters as they belong to protected category.

It also does not allow the broadcaster to be represented by a third party viz. M/s. Novex.

It however clearly states that if MSOs & LCOs do not have rights of commercial broadcast, it is up to the broadcaster to proceed against them.

This judgment will go a long way in ending harassment of commercial establishments specially protected hotels and restaurants in the small category from the commercial greed of certain broadcasters.

The detailed order is available at: http://www.tdsat.nic.in/07.07.2011/P.NO.111__C_,_176__C__and_111_C__of_2011_.pdf.n